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APR 7 1988 

^w ubrary 



NORTH CAROLINA 

REGISTER 



IN THIS ISSUE 



CONi 



EXECUTIVE ORDERS 

FINAL DECISION LETTERS 

PROPOSED RULES 

Housing Finance Agency 

Human Resources 

NRCD 

State Treasurer 



^/STRN^L 



ISSUE DATE: APRIL 4, 1988 
Volume 3 • Issue 1 • Pages 1-25 



INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODE 



NORTH CAROLINA REGISTER 

The North Carolina Register is published monthly and 
contains information relating to agency, executive, 
legislative and judicial actions required by or affecting 
Chapter 150B of the General Statutes. All proposed, ad- 
ministrative ailes and amendments filed under Chapter 
150B must be published in the Register. The Register 
will typically comprise approximately one hundred 
pages per issue of legal text. 

State law requires that a copy of each issue be pro- 
vided free of charge to each county in the state and to 
various state officials and institutions. The North 
CaroUna Register is available by yearly subscription at 
a cost of ninety-five dollars ($95.00) for 12 issues. 

Requests for subscriptions to the North Carolina 
Register should be directed to the Office of Ad- 
ministrative Hearings, P. 0. Drawer 1 1666, Raleigh, N. 
C. 27604, Attn: Subscriptions. 

ADOPTION. AMENDMENT, AND REPEAL OF 

RULES 

An agency intending to adopt, amend, or repeal a rule 
must first publish notice of the proposed action in the 
North Carolina Register. The notice must include the 
time and place of the public hearing; a statement of how 
public comments may be submitted to the agency either 
at the hearing or otherwise; the text of the proposed 
rule or amendment; a reference to the Statutory 
Authority for the action and the proposed effective date. 

The Director of the Office of Administrative Hearings 
has authority to publish a summary, rather than the 
full text, of any amendment which is considered to be 
too lengthy. In such case, the full text of the rule con- 
taining the proposed amendment will be available for 
public inspection at the Rules Division of the Office of 
Administrative Hearings and at the office of the pro- 
mulgating agency. 

Unless a specific statute provides otherwise, at least 
30 days must elapse following publication of the pro- 
posal in the North Carolina Register before the agency 
may conduct the required public hearing and take ac- 
tion on the proposed adoption, amendment or repeal. 

When final action is taken, the promulgating agency 
must file any adopted or amended rule for approval by 
the Administrative Rules Review Commission. Upran ap- 
proval of ARRC, the adopted or amended rule must be 
filed with the Office of Administrative Hearings. If it 
differs substantially from the proposed form published 
as part of the public notice, upon request by the agen- 
cy, the adopted version will again be published in the 
North Carolina Register. 

A rule, or amended rule cannot become effective 
earlier than the first day of the second calendar month 
after the adoption is filed with the Office of Ad- 
ministrative Hearings for publication in the NCAC. 

Proposed action on rules may be withdrawn by the 
promulgating agency at any time before final action is 
taken by the agency. 

TEMPORARY RULES 

Under certain conditions of an emergency nature, 
some agencies may issue temp>orar>' rules. A temporary 
rule becomes effective when adopted and remains in 



effect for the period specified in the rule or 180 days, 
whichever is less. An agency adopting a temporary rule 
must begin normal rule-making procedures on the per- 
manent rule at the same time the temporary rule is 
adopted. 

NORTH CAROLINA ADMINISTRATIVE CODE 

The North Carolina Administrative Code (NCAC) is 
a compilation and index of the administrative rules of 
25 state agencies and 38 occupational licensing boards. 
The NCAC comprises approximately 15,000 letter size, 
single spaced pages of material of which approximate- 
ly 35% is changed annually. Compilation and publica- 
tion of the NCAC is mandated by G.S. 150B-63(b). 

The Code is divided into Titles and Chapters. Each 
state agency is assigned a separate title which is fur- 
ther broken down by chapters. Title 21 is designated 
for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum 
cost of two dollars and 50 cents ($2.50) for 10 
pages or less, plus fifteen cents ($0.15) per each 
additional page. 

(2) The full publication consists of 52 volumes, 
totaling in excess of 15,000 pages. It is sup- 
plemented monthly with replacement pages. A 
one year subscription to the full publication in- 
cluding supplements can be purchased for 
seven hundred and fifty dollars ($750.00). In- 
dividual volumes may also be purchased with 
supplement service. Renewal subscriptions for 
supplements to the initial publication available. 

Requests for pages of rules or volumes of the NCAC 
should be directed to the Office of Administrative 
Hearings. 

NOTE 

The foregoing is a generalized statement of the pro- 
cedures to be followed. For specific statutory language, 
it is suggested that Articles 2 and 5 of Chapter 150B of 
the General Statutes be examined carefully. 

CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, 
page number and date. 1:1 NCR 101-201, April 1, 1986 

refers to Volume 1, Issue 1, pages 101 through 201 of 
the North Carolina Register issued on April 1, 1986. 



North Carolina Register. Published monthly by 
the Office of Administrative Hearings, P.O. 
Drawer 1 1666, Raleigh, North Carolina 27604, pur- 
suant to Chapter I50B of the General Statutes. 
Subscriptions ninety-five dollars ($95.00) per year. 
North Carohna Administrative Code. Published 
in looseleaf notebooks with supplement service by 
the Office of Administrative Hearings, P.O. 
Drawer 1 1666, Raleigh, North Carolina 27604, pur- 
suant to Chapter 150B of the General Satutes. 
Subscriptions seven hundred and fifty dollars 
($750.00). Individual volumes available. 



NORTH 
CAROLINA 
REGISTER 



n 




ISSUE CONTENTS 



I. EXECUTIVE ORDERS 

Executive Order 68-71 1 



II. FINAL DECISION LETTERS 

Voting Rights Act 5 



Office of Administrative Hearings 

P. O. Drawer 11666 

Raleigh, NC 27604 

(919) 733 - 2678 



Robert A. Melott, 

Director 
James R. Scarcella, Sr. 

Deputy Director 
Molly Mason, 

Assistant Director 

Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Johnson, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 
Latarsha Roberts, 

Records Clerk 



III. PROPOSED RULES 
Human Resources 

Health Services 7 

Mental Assistance 7 

Independent Agencies 

North Carolina Housing 

Finance Agency 21 

NRCD 

Coastal Management 11 

State Treasurer 
Local Government 

Commission 18 

rv. CUMULATIVE INDEX 25 



NORTH CAROLINA REGISTER 

Publication Deadlines and Schedules 

(March 1988 - March 1989) 



Issue 


Last Day 


Last Day 


Earliest 


♦ 


Date 


for 


for 


Date for 


Earliest 




Filing 


Electronic 


PubUc 


Effective 






Filing 


Hearing & 
Adoption by 
Agency 


Date 


^l,i^if1,tJHf 


+++++++♦ 


ifit^-^*^*^ 


+♦♦♦♦♦♦+ 


^if^^^^iH 


03; 15, 88 


02/24 88 


03/02/88 


04/14/88 


07,/01/88 


04,04/88 


03/11/88 


03/18/88 


05/04/88 


08/01/88 


04/15/88 


03/25/88 


04/01/88 


05/15/88 


08/01/88 


05:02/88 


04/11/88 


04/18/88 


06/01/88 


09/01/88 


05 16/88 


04/27 88 


05/03/88 


06/15/88 


09/01/88 


06,01/88 


05/10/88 


05/17/88 


07/01/88 


10/01/88 


06/15/88 


05/26 88 


06/02/88 


07/15/88 


10/01/88 


07/01/88 


06/10/88 


06/17/88 


07/31/88 


11/01/88 


07/15/88 


06/24 88 


07/01/88 


08/14/88 


11/01/88 


08/01,88 


07/11/88 


07/18/88 


08/31/88 


12/01/88 


08 15,88 


07/26 88 


08/02/88 


09/14/88 


12/01/88 


09/01/88 


08/11 88 


08/18/88 


10/01/88 


01/01/89 


09/15/88 


08/26/88 


09/02/88 


10/15/88 


01/01/89 


10,03/88 


09/12/88 


09/19/88 


11/02/88 


02/01/89 


10/14/88 


09/26 88 


10/03/88 


11/13/88 


02/01/89 


11/01/88 


10/11,88 


10/18/88 


12/01/88 


03/01/89 


11/15/88 


10/26/88 


11/02/88 


12/15/88 


03/01/89 


12,01/88 


11/07,88 


11/15/88 


12/31/88 


04/01/89 


12/15/88 


11/23/88 


12/02/88 


01/14/89 


04/01/89 


01/02/89 


12/08/88 


12/15/88 


02/01/89 


05/01/89 


01/16/89 


12/27,88 


01/03/89 


02/15/89 


05/01/89 


0201/89 


01/1089 


01/17/89 


03/03/89 


06/01/89 


02/ 15/89 


01/26/89 


02/02/89 


03/17/89 


06/01/89 


03/01/89 


02/08/89 


02/15/89 


03/31/89 


07/01/89 


03/15/89 


02/21/89 


03 02 '89 


04/14/89 


07/01/89 



* The "Earliest Effective Date" is computed assuming that the public hearing 
and adoption occur in the calendar month immediately following the "Issue 
Date" , that the agency files the rule with The Administrative Rules Review 
Commission by the 20th of the same calendar month and that ARRC approves 
the rule at the next calendar month meeting. 



EXECUTIVE ORDERS 



EXECUTIVE ORDER NUMBER 68 

NORTH CAROLINA COMMISSION ON THE 
SLPERCONDLICTING SUPER COLLIDER 

North Carolina's proposal to be the site of the 
Superconducting Super Collider (SSC) presents 
an enormous opportunity for the state to solidify 
its position as a world center of high technology 
research and development. If North Carolina is 
chosen as the site of the SSC, the benefits to the 
state and its people will be substantial. At the 
same time, any project of this magnitude wiU 
have effects on individuals and the surrounding 
communities. It is the obligation of the state to 
ensure that the effects of the SSC project— on the 
people in the area, on the counties and munici- 
palities, and on the environment--are beneficial. 

The SSC is a unique public project in many re- 
spects. It is the largest scientific instrument in 
the world and is designed for pure research. If 
North Carolina is chosen as the SSC site, the 
state will acquire the land needed for the SSC, 
then release the land to the federal government. 
This plan necessarily will involve the local gov- 
ernments in the SSC area. Because of the com- 
plexity of the project and the levels of 
government involved, an ongoing mechanism is 
needed to ensure that those who implement the 
SSC project are sensitive to the many govern- 
mental and individual rights and prerogatives in- 
volved. 

Therefore, by the authority vested in me as 
Governor by the Constitution and laws of North 
Carolina, IT IS ORDERED: 

Section 1. ESTABLISHMENT 

The North Carolina Commission on the 
Superconducting Super Collider is hereby estab- 
lished. The Commission shall consist of not 
more than fifteen members appointed by the 
Governor to serve at the pleasure of the Gover- 
nor. All vacancies shall be filled by the Gover- 
nor. The SSC Project Director shall serve as the 
Chairperson. The SSC Project Director shall 
vote only when necessary to break a tie. 



Section 3. FUNCTIONS 

The North Carolina Commission on the 
Superconducting Super Collider shall have the 
following duties: 

1. To serve as a coordinating mechanism be- 
tween the three counties involved and the state 
in matters relating to the SSC project. 

2. To recommend locations to the state and 
federal governments for the SSC Project which 
wUJ displace the fewest property owners. 

3. To recommend to the state the location of 
roads and utilities necessary for the project. 

4. To present the interests of the property 
owners potentially affected by the SSC Project 
to ensure that each receives fair compensation for 
SSC property acquisitions. 

5. To study the effects of SSC-related develop- 
ment on local government entities and recom- 
mend amounts of state fmancial aid to lessen the 
impact of the SSC and insure that local govern- 
ments are able to meet the needs of their com- 
munities. 

6. To monitor environmental impacts of the 
SSC and to recommend measures as necessary to 
prevent adverse effects on the environment. 

7. To promote and stimulate cooperative 
planning among the local governments affected 
to accommodate SSC-related growth for the 
benefit of all citizens. 

8. To meet as necessary, at the call of the 
Chairperson or of the Governor. 

Section 4. ADMINISTRATION 

1. Financial support for the Commission may 
be provided out of funds available to the North 
Carolina Board of Science and Technology in 
response to the requests of the Chairperson. All 
expenditures must be approved beforehand by 
the Chairperson. 

2. Subject to the availability of funds, members 
of the Commission may be reimbursed for travel 
and subsistence expenses as authorized by NCGS 
Section 138-5. 

3. The SSC Project shall provide the staff and 
administrative support for the Commission. 



Section 2. MEMBERSHIP 

The membership of the Commission shall in- 
clude but not be limited to representatives from 
the following groups: 

1. The Durham County Manager. 

2. The Granville County Manager. 

3. The Person County Manager. 

4. Two Durham County Commissioners. 

5. Two GranviUe County Commissioners. 

6. Two Person County Commissioners. 

7. The SSC Project Director. 



Section 5. REPORTS 

1. The Commission shall present interim re- 
ports and recommendations to the Governor at 
least aimually. 

2. The Commission shall present a Final Re- 
port and Recommendations to the Governor 
before its dissolution. 

Section 6. IMPLEMENTATION AND 
DURATION 

1. This order shall be effective immediately. 



NORTH CAROLINA REGISTER 



EXECUTIVE ORDERS 



2. This Commission shall dissolve at the plea- 
sure of the Governor. 

Done in Raleigh, North Carolina, this 1 1th day 
of March, 1988. 

EXECLTrV E ORDER NUMBER 69 

GOVERNOR'S TASK FORCE ON 
AQUACULTLRE IN NORTH CAROLINA 

By authority vested in me as Governor by the 
Constitution and laws of North Carolina, IT IS 
ORDERED: 

Section L 

There is hereby estabhshed the Governor's Task 
Force on Aquaculture in North Carolina. The 
Task Force shall consist of a Policy Committee 
and such technical committees as the Pohcy 
Committee shall create. 

Section Z 

The Policy Committee shall consist of not more 
than fifteen (15) members. Members of the 
PoUcy Committee shall include: 

a. Agriculture Advisor to the Governor; 

b. President of the UNC System; 

c. President of Duke University; 

d. Secretary of Natural Resources and Com- 

munity Development; 

e. Commissioner of Agriculture; 
f Secretar>- of Administration; 
g. Secretary- of Commerce; 

h. Science Advisor to the Governor; 
i. President of the North CaroUna Farm Bu- 
reau; 
j. President of the North Carolina Biotech- 
nology' Center; 
k. A member recommended by the Lieutenant 

Governor; 
1. A member recommended by the Speaker 

of the House; 
m. Up to four (4) members at large appointed 
by the Governor. 
The Secretary of Administration shall serve as 
Chairman of the Task Force. All members 
named under subsections (k), (1), (m) above shall 
serve at the pleasure of the Governor and the 
Governor shall fill all vacancies. If a vacancy 
occurs in a seat held by a member recommended 
by the Lieutenant Governor or Speaker of the 
House, the Governor shall fill the vacancy after 
recommendation by the appropriate official. 

Section 3. 



The Policy Committee may form such technical 
committees as necessary to study and report on 
the various aspects of aquaculture in this State. 

The members of the technical committees shall 
be drawn from professional and technical experts 
in the various related fields. Members of the 
Technical Committees shall be asked to serve by 
the Policy Committee and shall serve at its plea- 
sure. 

Section 4 

The Task Force shall have the following re- 
sponsibilities: 

a. Analyze environmental, fmancial, market- 

ing, processing, educational and legal is- 
sues within the aquaculture industry. 

b. Formulate recommendations for changes 
in current North Carolina statutes con- 
cerning the aquaculture industry. 

c. Formulate recommendations for agency 
and university programs to promote and 
develop the aquaculture industry. 

d. Formulate recommendations for research 
programs, demonstration projects, and 
other technology transfer activities. 

e. Perform other relevant studies and services 

as recommended by the Policy Commit- 
tee, 
f Prepare a final report to the Governor re- 
commending an aquaculture pohcy for 
North Carolina. This report shall be 
submitted to the Governor no later than 
January- 1, 1989. 

Section 5^ 

The Department of Agriculture and the De- 
partment of Administration shall provide neces- 
sary staffmg and administrative support for the 
Task Force, as directed by the PoUcy Committee. 

Section 6^ 

This Order shall become etTective immediately 
and shall remain in effect for one year. 

Done in Raleigh, North Carolina, this 1 1th day 
of March, 1988. 

EXECUTTV E ORDER NUMBER 70 

WOMEN S ECONOMIC DEVELOPMENT 
ADVISORY COUNCIL 

By authority vested in me as Governor by the 
Constitution and laws of North Carolina it is 
ORDERED: 

Section L I hereby recreate and estabhsh in the 
Department of Commerce the North Carolina 



NORTH CAROLINA REGISTER 



EXECUTIVE ORDERS 



Women's Economic Development Advisory 
Council. This Council will be composed of at 
least twelve (12) members who have distin- 
guished themselves by their accomplishments in 
the private sector. The membership of this 
Council will, to the extent practical, contain rep- 
resentatives from all major geographic areas of 
the State. The members of this Council will be 
appointed by the Governor and will serve at the 
pleasure of the Governor. Those members ap- 
pointed to the Women's Economic Development 
Advisory Council by the Governor under Exec- 
utive Order Number 7 retain their membership 
and continue to serve at the pleasure of the 
Governor. 

Section Z The Governor shall designate a 
Chairman from the membership of the Council. 
The Council will meet at the call of the Chair or 
the Secretary of the Department of Commerce. 
The current Chair shall continue to serve as 
Chair unless directed otherwise by the Governor. 

Section 3^ The Women's Economic Develop- 
ment Advisory Council will have the duty to 
thoroughly explore opportunities for women in 
our economy; carefully evaluate those opportu- 
nities; and advise the Secretary of Commerce on 
strategic courses of action, consistent with the 
State's economic development philosophy, which 
will best promote and encourage equal opportu- 
nity and advancement and integration of women 
into all aspects of North Carolina's economy. 
The primary focus of the Council shall be in the 
area of business opportunities, so as not to be 
duplicative of complementary efforts to enhance 
the status of women in the North Carolina 
economy. 

Section 4^ The Department of Commerce shall 
provide the administrative support for this 
Council. 

Section 5^ The members of the Women's Eco- 
nomic Development Advisory Council shall be 
entitled to reimbursement for subsistence and 
travel expenses authorized for State Boards and 
Commissions as provided in N.C.G.S. 138-5. 
Funds are to be made available as authorized by 
the Department of Commerce. 

Section 6^ This order supersedes and replaces 
Executive Order 7 signed on June 28, 1985. 

Section 7. This Executive Order is effective 
immediately and shall remain in effect until May 
15, 1989, or unless terminated earlier or extended 
by further Executive Order. 



Done in the Capitol City of Raleigh, North 
Carolina, this the 1 1th day of March, 1988. 

EXECUTIVE ORDER NUMBER 71 

GOVERNOR'S TASK FORCE ON RAIL 
PASSENGER SERVICE 

North Carolina and the nation were built on 
and along railroads. In particular, our urban Pi- 
edmont has been shap)ed in large part by the 
General Assembly's investment in the North 
Carolina Railroad over 130 years ago. Many of 
those Piedmont cities are now leading North 
Carolina's dramatic population and economic 
growth. 

With that growth comes an ever-increasing need 
for intercity, regional, and urban transportation. 
Some of our intercity traffic today moves via 
Amtrak along existing railroad routes through 
North Carolina. In the future, even greater reli- 
ance may need to be placed on rail passenger 
opportunities. 

Today, Amtrak is considering changing its in- 
tercity routes serving North Carolina. At the 
same time, the private freight railroads continue 
to react to economic forces by abandoning ser- 
vice and routes. These decisions, made outside 
North Carolina, not only affect today's trans- 
portation pattems, but could well limit our 
transportation choices for the future. Passenger 
trains move on some of these routes today, and 
may weU need to move on others in the future. 
Possibly, other forms of passenger transportation 
could also use those corridors. 

As the North Carolina Railroad and the Atlan- 
tic and North Carolina Railroad prepare to re- 
negotiate their right-of-way leases between 
Charlotte, Greensboro, Raleigh and Morehead 
City, consideration should be given to preserva- 
tion of future options for inter-urban transit by 
a carrier able to offer affordable, rehable rail pas- 
senger service. 

This corridor, as well as other rail corridors in 
and across the state, may well hold opportunities 
for North Carolina's future mobility. Every ef- 
fort should be given to exploration of short-term 
as well as longer-term opportunities for raU pas- 
senger service along these corridors in North Ca- 
rolina. 

Therefore, by the authority vested in me as 
Governor by the Constitution and laws of North 
Carolina, IT IS ORDERED: 

Section 1. ESTABLISHMENT 
The Governor's Task Force on Rail Passenger 
Service is hereby established. The Task Force 



NORTH CAROLINA REGISTER 



EXECUTIVE ORDERS 



shall consist of at least ten and not more than 
fifteen members appointed by the Governor to 
serve at the pleasure of the Governor. All va- 
cancies shall be filled by the Governor. The 
Governor shall designate one of its members as 
Chairman and one as Vice- Chairman. The Sec- 
retary of Transportation or his designee shall 
serve as an ex-officio member and shall net be 
included in the fifteen members to be appointed 
by the Governor. 

Section 2. FUNCTIONS 

( 1 ) The Task Force shall meet regularly at the 
call of the Chairman or the Governor. The Task 
Force is authorized to conduct public hearings 
for the purpose of receiving the comments and 
suggestions of citizens throughout the State. 

(2) The duties of the Task Force shall be to 
conduct a study of the present, near term, and 
future needs for rail transit service connecting 
major cities of North Carolina, with emphasis 
on the potential for providing affordable service. 

Section 3. ADMINISTRATION 

(a) The Director of Public Transportation of 
the Department of Transportation shall provide 
staff support to the Task Force. The Secretary 
of Transportation may designate such other per- 
sonnel from his staff as he deems appropriate and 
necessary to furnish guidance and assistance to 
the Task Force. 

(b) The Department of Transportation is au- 
thorized, subject to the availability of funds, to 
retain consulting ser\'ice(s) or employ other 



professional(s) if it determines that such 
service(s) or professional(s) would offer a cost- 
efficient method of gathering and analyzing in- 
formation. Funds for the retention and payment 
of such service(s) or professional(s) shall be made 
available from funds authorized for the Division 
of Public Transportation. 

(c) Members of the Task Force may be reim- 
bursed for necessary travel and subsistence ex- 
penses as authorized by N.C.G.S. 138-5. Funds 
for reimbursement for such expenses shall be 
made available from funds authorized for the 
Division of Public Transportation. 

(d) Funds for the support of the Task Force 
study, in addition to expenses authorized in Sec- 
tion 3, subsections (b) and (c) above, shall be 
made available from funds authorized for the 
Division of Public Transportation. 

Section 4. REPORTS 

The Task Force shall present a report to the 
Governor not later than the 1 5th day of January, 
1989. 

Section 5. IMPLEMENTATION AND 
DURATION 

(1) This order shall be effective immediately. 

(2) The Commission shall dissolve at the plea- 
sure of the Governor, but no later than Decem- 
ber 30, 1989. 

Done at Raleigh, North Carolina this 1 1th day 
of March, 1988. 



NORTH CAROLINA REGISTER 



VOTING RIGHTS ACT FINAL DECISION LETTERS 



[G.S. I20-30.9H, effective July 16, 1986, requires that all letters and other documents issued by the 
Attorney General of the United States in which a final decision is made concerning a "change af- 
fecting voting" under Section 5 of the Voting Rights Act of J 965 be published in the North Carolina 
Register. / 



U.S. Department of Justice 
Civil Rights Division 

WBR:MAP:KIF:gmh 

DJ 166-012-3 Voting Section 

T1281 P.O. Box 66128 

T3854-3858 Washington, D.C. 20035-6128 

March 4, 1988 

David A. Holec, Esq. 

City Attorney 

P.O. Box 1388 

Lumberton, North Carolina 28358 

Dear Mr. Holec: 

This refers to the December 7, 1987, annexations to the City of Lumberton in Robeson County, 
North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act of 
1965, as amended, 42 U.S.C. 1973c. We received your submission on January 4, 1988. 

The Attorney General does not interpose any objections to the changes in question. However, 
we feel a responsibility to point out that Section 5 of the Voting Rights Act expressly provides that the 
failure of the Attorney General to object does not bar any subsequent judicial action to enjoin the en- 
forcement of such changes. See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41). 

Sincerely, 

Wm. Bradford Reynolds 
Assistant Attorney General 
Civil Rights Division 

By: 



Gerald W. Jones 
Chief, Voting Section 



NORTH CAROLINA REGISTER 



VOTING RIGHTS ACT FINAL DECISION LETTERS 



U.S. Department of Justice 
Civil Rights Division 

WBR:SSC:TGL:gmh 

DJ 166-012-3 Voting Section 

T1769-1774 P.O. Box 66128 

Washington, D.C. 20035-6128 



Dewitt F. McCarley, Esq. 

City Attorney 

P.O. Box 7207 

Greenville, North Carolina 27835-7207 

Dear Mr. McCarley: 

This refers to the six annexations [Ordinance Nos. 1766, 1779, 1780, 1794, 1795, and 1797 (1987)) 
to the City of Greenville in Pitt County, North Carolina, submitted to the Attorney General pursuant 
to Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973c. We received your sub- 
mission on Januar>' 15, 1988. 

The Attorney General does not interpose any objections to the changes in question. However, 
we feel a responsibility to point out that Section 5 of the Voting Rights Act expressly provides that the 
failure of the Attorney General to object does not bar any subsequent judicial action to enjoin the en- 
forcement of such changes. See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41). 

Sincerely, 

Wm. Bradford Reynolds 
Assistant Attorney General 
Civil Rights Division 

By; 



Gerald W. Jones 
Chief Voting Section 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



TITLE 10 - DEPARTMENT OF HUMAN 
RESOURCES 

l\ otice is hereby given in accordance with G.S. 
I SOB- 1 2 that the Division of Health Services in- 
tends to amend regulations cited as 10 NCAC 9D 

.0302, .0303 and .03 2S. 

1 he proposed effective date of this action is A u- 
gust 1, 1988. 

1 he public hearing will be conducted at 1:30 
p.m. on May 9, 1988 at Norton Board Room, 6th 
Floor, Cooper Memorial Health Building, 225 
North McDowell Street, Raleigh, North Carolina. 



Co 



omment Procedures: Any person may request 
information or copies of the proposed rules by 
writing or calling John P. Barkley, Agency Legal 
Specialist, Division of Health Services, P.O. Box 
2091, Raleigh, North Carolina 27602-2091, (919) 
733-3134. Written comments on these subjects 
may be sent to Mr. Barkley at the above address. 
Written and oral (for no more than ten minutes) 
comments on these subjects may be presented at 
the hearing. Notice should be given to Mr. Bark- 
ley at least three days prior to the hearing if you 
desire to speak. 

CHAPTER 9 - HEALTH: LABORATORY 

SUBCHAPTER 9D - CERTIFICATION AND 
IMPROVEMENT 

SECTION .0300 - LABORATORY 
CERTIFICATION 

.0302 NOTICE AND PROCEDURE 

(a) A laboratory seeking certification must re- 
quest in writing an application for certification 
from the Department of Human Resources, Di- 
vision of Health Services, Laboratory Section, 
306 North Wilmington Street, Raleigh, North 
Carolina, 2761 1. The application for certification 
shall include: 

(6) Payment of the certification fee as specified 
in Rule .0303. 

Statutory Authority G.S. J30A-3/5; I30A-326. 

.0303 CERTIFICATION: CERTIFICATION 
RENEWAL: AND FEES 

(b) A laboratory shall renew its certification 
e\'er>' tw» yoaro. year by payment of the certif- 
ication fee by December j^ If the fee has not 
been paid by December 31 of each year, the lab- 
oratorv's certification will not be renewed, and 



the laboratory must apply for recertification pur- 
suant to Rule .0328. Notwithstanding the above, 
the first certification renewal fee after the effective 
date of these Rules shall be due on February J^ 
1988 and must be paid on or before March V^ 
1988 or the laboratory's certification will not be 
renewed. ¥be ronowal sbatt be Every two years, 
the laboratory shall renew its certification based 
upon an on-site evaluation by a laboratory cer- 
tification evaluator and compliance with the mi- 
nimum requirements of this Section. 

(d) The certification fee shaU be twenty dollars 
($20.00) per analyte. The minimum and maxi- 
mum fee per analyte group shall be as set out in 
G.S. 130A-326(7). The analyte groups are as 
follows: 

Inorganic Chemistry 

Organic Chemistry I (Synthetic 
Organic Chemicals) 

Organic Chemistry II (Volatile 
Organic Chemicals) 

Total Coliforms 

Radio Chemistry 
The certification fee shall not be prorated nor 
refunded. 

Statutory Authority G.S. I30A-3I5; I30A-326. 

.0328 RECERTIFICATION 

(a) A laboratory is eligible for recertification six 
months after revocation or nonrenewal of its 
certificate, except in the following instances: 
(3) A laboratory for which certification was 
not renewed for failure to pay the certif- 
ication fee by the date required in Rule 
.0303 is eligible for recertification after 
paying the overdue certification fee; a la- 
boratory applying for recertification on 
this basis shall not be required to pay an 
additional certification fee with the appli- 
cation. 

Statutory Authority G.S. 130A-3I5: I30A-326. 
****************** 



ly otice is hereby given in accordance with G.S. 
I SOB- 1 2 that the Department of Human 
Resources/ Division of Medical Assistance intends 
to amend regulations cited as 10 NCAC 26G 
.0402; 26H .0102 - .0/04, .0107, .0401. 

1 he proposed effective date of this action is A u- 
gust 1, 1988. 

1 he public hearing will be conducted at 1:30 
p.m. on May 16, 1988 at North Carolina Division 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



of Medical Assistance, 1985 U instead Drive, 
Room 201, Raleigh, N.C. 27603. 

y^ommcnt Procedures: Written comments con- 
cerning these amendments must be submitted by 
May 16, I9SS to: Director, Division of Medical 
Assistance, 1985 Umstead Drive, Raleigh. N.C. 
27603. Oral comments may be presented at the 
hearing. In addition, a fiscal impact statement 
on these proposed rules is available upon written 
request from the same address. 

CHAPTER 26 - MEDICAL SERVICES 

SUBCHAPTER 26G - PROGRAM INTEGRITY 

SECTION .0400 - AGENCY RECONSIDERATION 
REVIEW 

.0402 RECONSIDERATION REVIEW FOR 
PROGRAM ABUSE 

(f) Th# provid e r wiii h% inotruct e d tbat- Ae fe- 
quoot fo* aft li ' Xooutive Dt ' oision ©f h e aring must 
be rt'coived within the timo set hy- Rule .0 ' 103(b) 

a« Fxocutii i O Docirion ha* ftet- boon roo e iv e d, the 
admini j. truti' iB moaouroo ohall be i^ nplomontod 
without furthor notification. 

Authority G.S. 108A-25(b): 42 C.F.R. Part 455. 

SUBCHAPTER 26H - REIMBURSEMENT PLANS 

SECTION .0100 - REIMBURSEMENT FOR 

SKILLED 

NURSING FACILITY AND INTERMEDIATE 

CARE FACILITY SERVICES 

.0102 RATE SETTING METHODS 

(b) The prospective rate consists of two com- 
ponents: a direct patient care rate and an indirect 
rate computed and applied as follows: 

(1) The direct rate is based on the Medicaid 
cost per day incurred in the following cost 
centers: 

(A) Nursing, 

(B) Dietary or Food Service, 

(C) Laundry and Linen 

(D) Housekeeping, 
(€4 Modical Ptooordo, 
fp) [B) Patient Activities, 
{G) (Fj Social Services, 
^:^^ Ltilii'.ation RL" i iovv, 

fi} (G) Ancillary Services (includes several 
cost centers). 

Authority G.S. I08A-25(b); I08A-54; I08A-55; 
S.L. 1985, c. 479, s. 86; 42 C.F.R. 447 Subpart 
C. 



.0103 REASONABLE AND NON-ALLOWABLE 
COSTS 

(a) Providers have an affiimative responsibility 
to operate economically and efficiently so that 
their costs are reasonable. Providers are required 
to provide services at the lowest possible costs in 
compliance with Federal and State laws, regu- 
lations for licensing and certification, and stand- 
ards for quality of care and patients' safety. 
Providers are also responsible for the fmancial 
actions of their agents (e.g., management com- 
panies) in this regard. 

(b) The state may publish guidelines to defme 
reasonable costs in certain areas after careful 
study of industry-wide cost conditions. 

(c) The following costs are considered non-al- 
lowable facility costs because they are not related 
to patient care or are specifically disallowed un- 
der the North Carolina State Plan: 

(1) bad debts; 

(2) advertising— except personnel want ads, 
and one line yellow page (indicating facil- 
ity address); 

(3) life insurance (except for employee group 
plans); 

(4) interest paid to a related party; 

(5) contributions, including political or 
church-related, charity and courtesy al- 
lowances; 

(6) prescription drugs and insuhn (available 
to recipients under State Medicaid Drug 
Program); 

(7) vending machine expenses; 

(8) barber and beauty shop expenses; 

(9) state or federal corporate income taxes, 
plus any penalties and interest; 

(10) telephone or television for personal use 
of patient; 

(1 1) penalties or interest on income taxes; 

(12) dental expenses--except for consultant 
fees as required by law; 

(13) personal income taxes, plus any penalties 
and interest; 



(14) 
(15) 

(16) 



(17) 
(18) 
(19) 



(20) 



farm equipment and other expenses; 

retainers, unless itemized services of equal 
value have been rendered; 

physicians fees for other than utilization 
review or medical directors or medical 
consultants as required by law; 

country club dues; 

sitter ser\'ices or private duty nurses; 

capital expenditures subject to either 
section 1122 or certificate of need review 
not receiving prior approval by the ap- 
propriate state agency; 

conversions, leases, and management 
agreements not reviewed by the appropri- 
ate state agency; 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



(21) guest tfa¥S7 meals; 

(22) morgue boxes; 

(23) leave days—except therapeutic leave; 

(24) personal items and clothing, aft4 laun- 
dering of personal clothing; and 

(25) any other items which, under the given 
circumstances, are considered to be non- 
allowable. 

(d) For those non-allowable expenses which 
generate income, such as prescription drugs, 
vending machines, barber and beauty shop, etc., 
expense should be adjuotod, identified as a non- 
reimbursable cost center, where determinable. 
If the provider cannot determine the proper 
amount of expense which is to be adjuotod, 
identified, then the income which was generated 
must be offset in full to the appropriate cost 
center. 

Authority G.S. l08A-25(b); I08A-54; I08A-55; 
S.L. 1985, c. 479, s. 86; 42 C.F.R. 447, Subpart 
C. 

.0104 COST REPORTING: ALDITING AND 
SETTLEMENTS 

(a) Each facilit>' that receives payments from 
the North Carolina Medicaid Program must 
prepare and submit a report of its costs and other 
fmancial information such as the working trial 
balance related to reimbursement annually. The 
report must include costs from the fiscal period 
beginning on October 1 and ending on Septem- 
ber 30 and must be submitted to the state on or 
before the December 3 1 that immediately follows 
the September 30 year end. Facilities that file 
reports after that date will be charged a penalty 
of up to five hundred dollars ($500.00)per day for 
each day after December 31 that the report is 
delinquent. The Division of Medical Assistance 
may extend the deadline for fiUng the report if in 
its view good cause exists for the delay. 

(d) The specific cost reporting guidelines re- 
lated to this plan are set forth in the following 
paragraphs. The state will publish guidelines, 
consistent with the provisions of this plan, con- 
cerning the proper accounting treatment for 
items described in this Rule as related operating 
expenses. These guidelines will be issued prior 
to April 1, 1985. The guidelines may be subse- 
quently modified prior to the beginning of each 
cost reporting period. In no case, however, shall 
any modifications be applied retroactively. A 
provider should request clarification in writing 
from the state if there is uncertainty about the 
proper cost center classification of any particular 
expense item. 

(1) Nursing Cost Center includes the cost of 
nursing staff, medical supplies, and related 



operating expenses needed to provide 
nursing care to patients, including medical 
records, utilization review, the Medical 
Director and the Pharmacy Consultant. 
Also, the cost (rental or purchase) of spe- 
cial equipment that is medically required 
to sustain life may be charged to this cost 
center. Such equipment shall include ox- 
ygen concentrators, respirators and venti- 
lators. 

(2) Dietary Cost Center includes the cost of 
staff, raw food, and supplies needed to 
prepare and deliver food to patients. 

(3) Laundry and Linen Cost Center includes 
the cost of staff, bed linens - replacement 
mattresses and related operating expenses 
needed to launder facility provided items. 

(4) Housekeeping Cost Center includes the 
cost of staff and supplies needed to keep 
the facility clean. 

f^ Medical Ptooordo Cost C e nter includoo tbe 

oxponoo noodod te maintain patient re- 
cordo. 

(4} £5} Patient Activities Cost Center includes 
the cost of staff, supplies, and related op- 
erating expenses needed to provide ap- 
propriate diversionary activities for 
patients. 

f?) (6) Social Services includes the cost of so- 
cial workers and related operating ex- 
penses needed to provide necessary social 
services to patients. 

f8^ Utiliaatio H- R.evi e w includoo s& costs Fe- 
quir e d te res'ie' . i i ' patient status. 

(^ (7} Ancillary Cost Center includes the cost 
of tl*» following special anoiUar)^ son'icoo: 
Pi.adiolog'y, Ixiboratory, Physical Th e rapy, 
Occupational Therapy, Spoooh Therapy, 
Intravenous Fluids aft4 .Medicare Part S 
bUlablo medical supplies. Providers must 
bin Medicare Part ft fw thos e ancLUap > ' 
G e r i 'icos covered under that program, all 
therapy services covered by the Medicaid 
program and billable medical supplies. 
Providers must bill Medicare Part B for 
those ancillary services covered under the 
Medicare B program. 

f44) [8) Administrative and General Cost 
Center includes all costs needed to ad- 
minister the facility, including the staff 
costs for the administrator, assistants, 
bluing and secretarial personnel, personnel 
director and pastoral expenses. It includes 
the costs of copy machines, dues and 
subscriptions, transportation, income 
taxes, legal and accounting fees, start-up, 
and a variety of other administrative costs 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



as set forth in the Chart of Accounts. 
Interest expense other than that stemming 
from mortgages or loans to acquire phys- 
ical plant items should be reported here. 
(444 (£2 Property Ownership and Use: 

(A) This cost center includes all allowable 
costs related to the acquisition and/or use 
of the physical assets including building, 
fixed equipment and movable equipment, 
that are required to deliver patient care, 
except the special equipment, as specified 
in .0104(d)(1) of this Rule that may be 
charged to the nursing cost center. Spe- 
cifically it includes the foUowing items: 

(i) all equipment expense regardless of 
equipment nature, 
(ii) lease expense for aft¥ aU physical as- 
sets, 
(iii) depreciation of assets utilizing the 

straight line method, 
(iv) interest expense of asset related li- 
abilities, e.g., mortgage expense, 
(v) property taxes. 

(B) For the purposes of computing allow- 
able lease expense and for balance sheet 
presentation for Return on Equity com- 
putations (see Rule .0105) leases shall not 
be capitalized. 

(C) In establishing the allowable cost for 
depreciation and for interest on capital 
indebtedness, with respect 10 an asset 
which has undergone a change of owner- 
ship, the valuation of the asset shall be the 
lesser of allowable acquisition cost less 
accumulated depreciation to the first 
owner of record on or after July 18, 1984 
or the acquisition cost to the new owner. 
Depreciation recapture will not be per- 
formed at sale. The method for estab- 
lishing the allowable related capital 
indebtedness shall be as follows: 

(i) The allowable asset value shall be 
divided by the actual acquisition cost, 
(ii) The product computed in step 1 shall 
be multiplied times the value of any re- 
lated capital indebtedness, 
(iii) The result shall be the liability 
amount upon which interest may be 
recorded at the rate set forth in the debt 
instrument or such lower rate as the 
state may prove is reasonable. 
The allowable asset and liability values 
established through the process in this 
Rule shall be those used in balance 
sheet presentations for return on equity 
computation (see Rule .0105). These 
procedures are established to implement 



the provisions of PL 98-369 Section 
2314. 

f44) (10) Of)eration of Plant and Maintenance 
Cost Center includes all costs necessary to 
operate or maintain the functionality and 
appearance of the plant. These include: 
maintenance staff, utilities, repairs and 
maintenance to all equipment. 

f44^ (1 1) Equipment Expense. Equipment is 
defmed as an item with a useful life of 
more than two years and a value greater 
than two hundred dollars ($200.00). 
Equipment ownership and use costs shall 
be reported in the Property Ownership 
and Use Cost Center. Equipment main- 
tenance and repair costs shall be reported 
in the Operation of Plant and Mainte- 
nance Cost Center. Equipment should 
not be reported elsewhere. 

(44) (12) Training Expense. Training expense 
shall be allocated to the appropriate ben- 
efiting cost centers. Adequate records to 
support the allocation shall be maintained 
and presented up>on request to establish 
allowability. 

(4-f^ (13) Home Office Costs. Home office 
costs are generally charged to the Admin- 
istrative and General Cost Centers. In 
some cases, however, certain persormel 
costs which are direct patient care oriented 
may be allocated to "direct" patient care 
cost centers vritb prior ad^ i ioo ef A« stat e 
agency, if time records are maintained to 
document the performance of direct pa- 
tient care services. No Home office over- 
head may be so allocated. 

(44) (14) Management Fees. Management fees 
are charged to the Administrative and 
General Cost Center. In some cases, 
however, a portion of a management fee 
may be allocated to a direct patient care 
cost center »ith prior advico »f tfee otato 
agency, if time records are maintained to 
document the performance of direct pa- 
tient care services. The amount so allo- 
cated may be equal only to the salary and 
fringe benefits of persons who are per- 
forming direct patient care services while 
employed by the management company. 
Adequate records to support these costs 
must be made available to staff of the Di- 
vision of Medical Assistance to support 
these costs. 

Authority G.S. 108A-25(b); I08A-54: /OSA-55; 
S.L. 1985, c. 479, s. 86; 42 C.F.R. 447, Subpart 
C. 



10 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



.0107 PAYMENT ASSURANCE 

(d) In all circumstances involving third party 
payment, Medicaid is the payor of last resort. 
No payment will be made for a Medicaid recipi- 
ent who is also eligible for Medicare, Part A, for 
the first 20 days of care rendered to skilled nurs- 
ing patients. .Medicaid payments for co-insu- 
rance for such patients wlU be made for the 
subsequent 21st through the 100th day of care. 

I lr-\<ti.^ii r r-\w . - 1 1 .-» l-> r--/~\ ■ir\i^fti-'^r\r>c-^ ^ i n 1 1 1^^ ^^^^^^^^^ ^^^ ^J^^ 
1 ITTtt^Pt^^T^ P^^^^^ tTJ LI lUUl LLl IV^^ ~~ LU l^V ULi 1 1 1 1. \JW l\J \.H\J 

difToronco botWL ' on the amount pdi4 by Modicare 
aft4 the rate ootabliohod by the state f»f the facil 
ity invoKod. In the case of ancillary services 
providers are obligated to: 

(1) maintain detailed records or charges for 
all patients; 

(2) bill the appropriate Medicare Part B car- 
rier for all services provided to Medicaid 
patients that may be covered under that 
program; and 

(3) allocate an appropriate amount of ancil- 
lary costs, based on these charge records 
adjusted to reflect Medicare denials of 
coverage, to Medicare Part B in the an- 
nual cost report. For failure to comply 
with this requirement, the state may 
charge a penalty of up to 5 percent of a 
provider's indirect patient care rate for 
each day of care that is provided during 
the fiscal year in which the failure occurs. 
This penally shall not be considered an 
allowable cost for cost reporting purposes. 

Authority G.S. IOSA-25(b); I08A-54; 108A-55; 
S.L. 1985, c. 479, s. 86; 42 C.F.R. 447, Subpart 
C. 

SECTION .0400 - PROVIDER FEE SCHEDULES 



.59520 550.00 



.90260 



22.00 



.59521 


800.00 


.90270 


28.00 


.59540 


600.00 


.90280 


40.00 


.59541 


850.00 


.90282 


15.00 


.59560 


600.00 


.90292 


20.00 


.59561 


850.00 


.90300 


30.00 


.59580 


600.00 


.90315 


40.00 


.59581 


850.00 


.90320 


50.00 


.90000 


20.00 


.90340 


20.00 


.90010 


22.00 


.90350 


20.00 


.90015 


30.00 


.90360 


25.00 


.90017 


40.00 


.90370 


30.00 


.90020 


45.00 


.90600 


25.00 


.90030 


9.00 


.90605 


25.00 


.90040 


14.00 


.90610 


50.00 


.90050 


17.00 


.90620 


60.00 


.90060 


21.00 


.90630 


60.00 


.90070 


26.00 


.90640 


18.00 


.90080 


35.00 


.90641 


18.00 


.90200 


30.00 


.90642 


20.00 


.90215 


50.00 


.90643 


26.00 


In addition fees for all specialties for early and 
periodic screening, detection and treatment shall 
be as follows: 


Patient 


Age 




Fee 


Birth to 4 




B 30.00 


4 and Over 




45.00 


(f) In no case 


shall charges 


for services provided 


under the Medicaid Program exceed the provid- 
er's customary charges to the general public for 
such services. 



Statutory Authority G.S. 108A-25(b): S.L. 
c. 479, s. 86. 



1985, 



.0401 PHYSICIAN FEE SCHEDULE 

(e) I» He ease shall chargoo fof oor . 'icoD provided 
undor the Modicaid program oxcood the provid 
ef^ customar)' chargoo te the gonorol public f»f 
such soP i icos. Notwithstanding any of the fore- 
going provisions of this Section the fees for the 
following services shaU be paid to all Specialties 
at the levels specified below. [The services are 
identified by the identifying codes that are set 
forth in the Physicians' Current Procedural Ter- 
minolog\' Fourth Fdition (CPT-4) 1987 manual 
published by the American Medical Association.) 



Code 



Fee 



Code 



Fee 



.59400 $625.00 



.59410 350.00 



.90220 S 70.00 
40.00 



.595(10 5811.00 
.59501 850.00 



.90225 
.90240 
.90250 



14.00 
16.00 



TITLE 15 - DEPARTMENT OF NATURAL 

RESOURCES AND COMMUNITY 

DEVELOPMENT 

lyotice is hereby given in accordance with G.S. 
I50B-I2 that the Division of Coastal Management 
intends to amend the regulation cited as 15 NCA C 
7 J .0409. 

1 he proposed effective date of this action is Au- 
gust I, 1988. 

1 he public hearing will be conducted at 10:00 
a.m. on May 26, 1988 at Ramada Inn, 170! S. 
Virginia Dare Trail, Kill Devil Hills, NC 27948. 



Co 



' omment Procedures: A II persons interested in 
these matters are invited to attend the public 



NORTH CAROLINA REGISTER 



II 



PROPOSED RULES 



hearing. The Coastal Resources Commission will 
recei\'e written comments up to the date of the 
hearing. Any persons desiring to present lengthy 
comments is requested to submit a written state- 
ment for inclusion in the record of proceedings at 
the public hearing. Additional information con- 
cerning the hearing or the proposals may be ob- 
tained by contacting: Portia Rochelle. Division of 
Coastal Management, P.O. Box 27687, Raleigh, 
NC 27611-7687, (919) 733-2293. 

CHAPTER 7 - COASTAL MANAGEMENT 

SUBCHAPTER 7J - PROCEDURES FOR 

HANDLING NLUOR DEVELOPMENT 

PERMITS: VARIANCE REQUESTS: APPEALS 

FROM MINOR DEVELOPMENT PERMIT 
DECISIONS: AND DECLARATORY RULINGS 

SECTION .0400 - FINAL APPROVAL AND 
ENFORCEMENT 

.0409 CIVIL PENALTIES 

(a) Purpose and Scope. These Rogulationo 
Rules provide the procedures and standards gov- 
erning the assessment, remission, mitigation and 
appeal of civil penalties assessed by the Coastal 
Resources Commission and its delegates pursu- 
ant to G.S. 113A- 126(d). 

(b) Defmitions. The terms used herein shall 
be as defmed in G.S. 1 13A-103 and as follows: 

(1) "Commission" means the N. C. Coastal 
Resources Commission; 

(2) "Delegate" means the director or other 
qualified employee of DNRCD to whom 
the commission has delegated authority to 
act in its stead in relation to the assess- 
ment of civil penalties pursuant to this 
Section; 

(3) "Director" means the Director, QtTic e Di- 
vision of Coastal Management; 

(4) "Respondent" means the person against 
whom a» ass e f .- im e nt has boon propos e d 
ss¥rk a penalty has been assessed. 

(c) WTion AGs e ssabl e . Civil penalties may be 
assessed against any person who commits a vio- 
lation as provided for in G.S. 1 13A-126(d)(r) and 

1^ . . 

f4-^ i* roquirod h^A fotfe te apply fo* »f t& se- 

G««» a- pormit ro quired fe*r G.S. 1 13A 133, 

ef who ' l iolatc'o ef foii* te a€4- m accord 

ancL ' with the termc i , conditiono, e* Fe- 

quirt ' mont ' j ef i . uch pormit; 

(-3^ foife to fii^ oubmit, »f mak e available, as 
the es€e may ber aft¥ documontr . , 4ate ef 
reports required by the cotnmic i oion pur 
ouant te- th** article; 

(4) refuc . es access te- the commission ef its 
duly designated represontati' i o. whe' has 



Gufiiciontly identified himoolf ^^t 
official crodontialo, te ft»y promisos. Ret 
including afty occupied dsvoUing house »f 
curtilage, ier the purpooo ^ conducting 
aft investigation provided fof m this arti- 

commJGsion implomonting the pro' i -isions 
ef this article; provided, howevor, that this 
paragraph sh^ net apply t» r e gulations 
relating te minor de' i 'olopmonto. 

(d) Notice of Violation. The commission may 
deoignate as^ authoriz e designates and authorizes 
employees of the DNRCD to issue in the name 
of the commission notices of violation to any 
person engaged in an activity which constitutes 
a violation for which a civil penalty may be as- 
sessed. Such notices shall set forth the nature of 
the alleged violation, shall request that the illegal 
activity be ceased, and shall be delivered per- 
sonally or by registered or certified mail. As soon 
as is feasible a notice will be followed by a pro 
pooal te aoGoos a eivit penalty assessment or ac- 
tion to pursue some other appropriate remedy. 

(e) Notice of Proposals ¥e Assoss Assessment. 

(1) The commission ©t its dologate may pro 

pose te assoss a p e nalty by notifying the 
person against whom the assossmont is a 
penalty by notifying the person against 
whom the assossmont is proposod by Feg- 
istorod ©f cortifiod mail. Any person 
against whom a penalty is assessed shall 
be notified by certified or registered mail. 
The commission hereby delegates to the 
director of the OfTio e Division of Coastal 
Management the authority to propose as- 
s e ssment »f assess civil penalties according 
to the procedures set forth in this R e gu 
lation. Rule. The director shall propose 
aft assossmont assess a civil penalty of not 
less than fifty dollars ($50.00) for a minor 
development violation or not less than 
one hundred dollars ($100.00) for a major 
development violation in all cases where 
he has d e t e rmin e s determined that there 
is probable cause to believe that the re- 
spondent has committed a violation and 
that other available remedies are inappro- 
priate or inadequate. 

(2) The notice of a proposed assessment shall 
specify the reason for assessment and shall 
inform the assessed person of the right to 
appeal the assessment by filing a petition 
for a contested case hearing with the Of- 
fice of Admmistrati\e Hearings pursuant 
to G.S. 150B-23. the date ef the proposed 
administrati' i 'o hearing concerning the as- 
Dossmont, aft4 Fftay specify the amount »f 



12 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



tiw proposed aoGoooment. ¥b« hoaring 

mailing ef tb© notice ef Ae propoood as- 
ootiomont. 
(3) Upon receipt of the proposed assessment, 
the respondent shall immediately cease all 
of those activities which the propoood as- 
sessment sets forth as the reason(s) for the 
assessment pending the result of any ad- 
ministrative hearing or superior court 
proceeding held pursuant to the pro- 
visions of this Rule, 
(f) Amount of Assessment. 

(1) A civil penalty of not more than two 
thousand five hundred dollars ($2,500) 
may be assessed for any violation. 

(2) If any action or failure to act for which a 
penalty may be assessed under this Rule 
is willful, the commission or its delegate 
may assess a penalty not to exceed two 
thousand five hundred dollars ($2,500) for 
each separate violation, after th« fifst as- 
Gooomont, provided, how e ver, tbat- »» 
penalty bhall be imposed under tfeis Rule 
pending court rei i 'iew »f a ftpst- assessment, 
which has been properly appealed. If any 
person continues to violate by action or 
inaction any rule or order of the commis- 
sion after receipt of proper written notice 
from the Division of Coastal Management 
each day the violation continues or is re- 
peated may be considered to constitute a 
separate violation subject to the foregoing 
penalties. 

(3) In determining the amount of the penalty 
the commission or its delegate shall con- 
sider the degree and extent of harm caused 
by the violation and the cost of rectifying 
the damage. In determining the degree 
and extent of harm caused, the commis- 
sion may consider the duration of the vi- 
olation, damage to public resources, 
damage to private property, effectiveness 
of preventive and restorative measures 
taken by the assessed person, the previous 
record of the assessed person in complying 
or not complying with the laws and regu- 
lations implemented by the commission; 
and any other factors relevant to the harm 
caused by an alleged violation. 

(4) Pursuant to Subparagraph (f)(3) of this 
Rule, civil penalties for major develop- 
ment violations shall be assessed in ac- 
cordance with the following criteria. 
Assessments resulting from any unau- 
thorized development within a designated 
Area of Envirorunental Concern which do 
not fit the following criteria shall be made 



using the best information available at the 
time of the violation and from subsequent 
investigation. 

(A) Unauthorized development which 
could have been permitted under coastal 
management regulations shall be subject 
to tfee a minimum civil penalty of one 
hundred dollars ($100.00). This category 
shall include only development that can, 
at the time of assessment, meet al[ of the 
following four criteria: 

(i) consistency with the local land use 
plan; 

(ii) consistency with AEC standards and 
state guidelines; 

(iii) proof of notification of adjacent ri- 
parian property owners; and 

(iv) no substantial objections from these 
adjacent riparian property owners. 

(B) Civil penalties for development which 
could not have been permitted under 
coastal management regulations shall be 
assessed as foUows. This category shall 
include development that is sufficiently 
inconsistent with LUP's I .and Use Plans, 
AEC standards and/or state policies to 
have warranted denial if the permit appli- 
cation process had been followed. In all 
cases, restoration shall be required to the 
fullest extent practicable consistent with 
the need to avoid additional damage to 
the resources and penalties shall be as- 
sessed as follows: 

(i) Development which involves wetland 
alteration or other damage which 6a» 
b© has been completely restored with 
no permanent or irreversible losses of 
productivity shall be subject to the mi- 
nimum civil penalty of one hundred 
doUars ($100.00). 

(ii) Development which does not involve 
permanent or irreversible losses of re- 
sources, but cannot be adequately re- 
stored or af» is of such a nature that it 
r e fl e ct reflects a reckless disregard for 
their its impact or have has a high po- 
tential for permanent, long-term or ir- 
reversible losses of resources shall be 
restored to the fullest extent practicable 
and shall be subject to a civd penalty 
one-half of that specified for the area 
affected according to Schedule A of this 
Rule. 

(iii) Development which involves wet- 
lands alteration or other damage which 
causes permanent or irreversible losses 
of coastal resources shall be restored to 
the fullest extent practicable and shall 



NORTH CAROLINA REGISTER 



13 



PROPOSED RULES 



be subject to a civil penalty of an 
amount graduated according to Sched- 
ule A. 
(iv) For development that does not in- 
volve disruption of an area of a specific 
size, has an undetermined impact, or 
impacts that are difTicult or impractical 
to determine, reflects a reckless disre- 
gard for the rogulationo rules and/or has 
a high potential for permanent or irre- 
versible losses of resources, the violator 
shall be required to restore to the fullest 
extent practical and shall be subject to 
the minimum Si 00 one hundred doUar 
($100.00) assessment, fof tfe« fifst e^ 

tef dovulopmunt activity within tl*e 
sam e AliC, tb« proooding asoaosment 

IT f » 1 1 ii^ i1^^11^^^^u4 t /-\ T- il^^ ^^^^^^^^^ QJ^^l ^^^^^^ 

oucoooding offonDO. 
(v) Dovolopmcnt in' . 'oKing » partial »f 
comploto structuro wliich doos net- 
comply with location ©f ootbaok stand 
afds C ' hall b* romovod to comply with 
applicablo standards afl4 Ae liable party 
shall be assess e d ti*e mirmnum penalty 

r-t 4 ^vjT^i Vi 1 1 «-i ,--1 J-.U-1 j-l /-> 1 1 ■-> re- (^L^^iL\^A^^^^ ^i Ij^^ 

Structuro is He4- removed, the liabl e 
party shall be subject to a fift© ef twe- 
thousand five hundred dollars (S2500) 
fof habitable structur e s aft4 frw» hun 

over dunes afi4 similar small, non ha 
bitable structures. U appropriate, a 
court order shall be sought to compel 
relocation ef the structure m compU 
an CO witb location standards. Any 
structure or part of a structure that is 
constructed in violation of a rule or or^ 
der of the commission and is inconsist- 
ent with applicable .guidelines for 
development shall be removed or mod- 
ified to those guidelines and the liable 
party shall be assessed the minimum 
penalty of one hundred dollars 
($100.00). If the structure is not re- 
moved or modified as requested by the 
Division of Coastal .Management, a 
court order will be sought to compel 
the necessar>' removal or modification 
and the liable party shall be subject to 
continuing assessment according to 
Subparagraph (f)(4)(G) of this Rule. 
(C) Violations resulting from non-compli- 
ance with permit conditions or specifica- 
tions shall be evaluated according to their 
temporary or permanent adverse impacts 
on wetlands, water quality, fishery re- 



sources, primary nursery areas, mudflats, 
and/or primary dunes. If the preceding 
impacts occur, restoration shall be re- 
quired to the extent practicable and the 
amount of the assessment shall be deter- 
mined in accordance with Subparagraph 
(f)(4)(B) of this Rule. If there has been 
no resource loss and the project is con- 
sistent with the AEC standards, the as- 
sessment shall be determined in 
accordance with Subparagraph (f)(4)(A) 
of this Rule. Such permit conditions vi- 
olations shall include, but not be limited 
to, the following: 

(i) failure to honor the shrimp develop- 
ment moratorium; 
(ii) failure to excavate behind a silt screen 

or earthem plug; 
(iii) failure to stabilize spoil material; 
(iv) improper operation of a disposal 

area; 
(v) location of a spoil disposal area out- 
side of permitted boundaries; 
(vi) depth of excavation exceeding per- 
mitted limits; or 
(vii) bulkhead alignment outside of per- 
mit specifications. 

(D) Assessments for violations by public 
agencies (i.e. towns, counties and state 
agencies) shall be determined in accord- 
ance with Subparagraphs (f)(4)(A), (B) 
and (C) of this Rule. 

(E) Willful and intentional violations. The 
penalty assessed under the criteria listed in 
Subparagraphs (f)(4)(A),(B) and (C) of 
this Rule shall be doubled for willful and 
intentional violations except that the 
doubled penalties assessed under this Sec- 
tion may not exceed two thousand five 
hundred dollars ($2500) and in no case be 
less than five hundred dollars ($500.00) for 
each separate violation. A violation shall 
be considered to be willful and intentional 
when: 

(i) The violator has received clear and 
direct instructions from a representative 
of the Division of Coastal Management 
that a permit would be required for the 
proposed development and the violator 
subsequently undertook development 
without a permit; or 

(ii) The violator has committed previous 
violations involving the same or similar 
development activities in the same 
AEC. 

(iii) The violator has refused or failed to 
restore a damaged area as requested by 
the Division of Coastal Management 



14 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



pursuant to a restoration agreement or 
as required under the schedule for civil 
penalty assessments as set out in Sub- 
paragraphs (0(4)( B) and (C) of this 
rule, if appropriate a court order shall 
also be sought to require restoration. 
The minimum penalty assessed under 
Subparagraph (0(4)(E)(i) of this Rule 
shall be five hundred doUars ($500.00). 

(F) Assessments against contractors. Any 
contractor, subcontractor, person or 
group functioning as a contractor shjdl be 
subject to a notice of violation and as- 
sessment of a civil penalty as follows: 

(i) For the fu^st violation, the 

contractor(s) shall receive a notice of 
violation and no civil penalty shall be 
assessed; 

(ii) For the second and each succeeding 
ofTunoo violation within the same AEC, 
the contractor(s) shall be assessed a 
penalty in accordance with Subpara- 
graph (0(4) (A),(B) aft4 (e^ of this 
Rule. Such penalty shall be in addition 
to that assessed against the landowner. 
When a pcnaltv is being doubled pur- 
suant to Subparagraph (f)(4)(F') and the 
element of willfulness is present only 
on the part of the contractor, the land- 
owner shall be assessed the initial por- 
tion of the penalty and the contractor 
shall be assessed the doubled portion. 

(G) Continuing violations. 

(i) ;\ny development in violation of 
CAM A permit requirements that con- 
tinues after receipt of p roper notice 
from the Division of Coastal Manage- 
ment may be subject to a minimum 
daily penalty of fi\'e hundred doUars 
($500.00) as estabUshed b^ (f)(E)(i) of 
this Rule. 

(ii) Refusal or failure to restore a dam- 
aged area as requested by the Division 
of Coastal Management may be con- 
sidered a continuing violation and shall 
be subject to the minimum penalty of 
one hundred doUars ($100.00) per day 
if such refusal or failure to restore does 
not result iri additional environmental 
resource damage or loss. When re- 
sources continue to be affected by the 
\iolation. the amount of the penalty 
will be determined according to 
(f)(4)(B) of this Rule. The continuing 
penalty period will be calculated from 
the date of receipt of the notice of con- 
tinuing \iolation and run until: 
(1) the division's order is satisfied, or 



(II) the party enters into good faith 

negotiations with the division, or 
(III) the party contests the division's 
order in a judicial proceeding by 
raising a justifiable issue of law or fact 
therein. 

The continuing penalty period will 
resume if the party terminates nego- 
tiations without reaching an agree- 
ment with the division, fails to 
comply with court ordered restora- 
tion, or fails to meet a deadline for 
restoration that was negotiated with 
the division. 
(5) Pursuant to Subparagraph (f)(3) of this 
Rule, civil penalties for minor develop- 
ment violations shall be assessed in ac- 
cordance with the following criteria: 

(A) Development which could have been 
permitted shall be assessed a minimum 
civil penalty of fifty dollars ($50.00). This 
category shall include only development 
that meets all of the following criteria: 

(i) consistency with the local land use 
plan; 

(ii) consistency with AEC standards and 
State guidelines; and 

(iii) no significant objections from adja- 
cent property owners. 

(B) Civil penalties for development which 
could not have been permitted, that is 
those activities that are sufficiently incon- 
sistent with LUP's, AEC standards or 
other state guidelines to have warranted 
denial if the permit application process 
had been followed, shall be assessed as 
follows: 

(i) Development which resulted in no 
resource damage shall be brought into 
compliance with provisions of the local 
land use plan, AEC standards and other 
state guidelines and assessed a civil 
penalty of one hundred dollars 
($100.00); 

(ii) For development which involves re- 
source damage that can be completely 
restored so that there will be no per- 
manent or long-lasting impacts, the vi- 
olator shall be required to restore to the 
fullest extent practicable and shall be 
assessed a civil penalty of one hundred 
doUars ($100.00); 

(iii) Development which violates estua- 
rine shoreline AEC standards such that 
there wUl be permanent or long-lasting 
impacts on estuarine water quality shall 
require restoration to the fuUest extent 
practicable and shall be assessed a civil 



NORTH CAROLINA REGISTER 



15 



PROPOSED RULES 



penalty of two hundred fifty dollars 
($250.00); 

(iv) Disturbance or reduction of a pri- 
mary or frontal dune by less than one- 
third aft4 less than two thirds of its 
height or width shall require restoration 
to the fullest extent practicable and 
assessment of a civU penalty in the 
amount of one hundred fifty dollars 
($150.00); 

(v) Disturbance or reduction of a primary 
or frontal dune by more than one-third 
of its height or width and less than 
two-thirds of its height or width shall 
require restoration to the fullest extent 
practicable and assessment of a civU 
penalty in the amount of two hundred 
doUars ($200.00); 

(vi) Disturbance or reduction of a dune 
by more than two-thirds of its height 
or width shall require restoration to the 
fullest extent practicable and assessment 
of a civil penalty in the amount of two 
hundred fifty dollars ($250.00); 

(vii) Filling with unauthorized materials 
and/or covering natural dune vegetation 
shaU require restoration to the fullest 
extent practicable and assessment of a 
civil penalty in the amount of two 
hundred dollars ($200.00). 

(C) Violations resulting from noncompli- 
ance with permit conditions or specifica- 
tions shall be treated as activities which 
may or may not have been permitted as 
in Subparagraphs (f)(5)(A) and (B) of this 
Rule. 

(D) Violations of public agencies (i.e. 
towns, counties and state agencies) shall 
be handled by the local permit officer or 
authorized DCM staff within their re- 
spective jurisdictions except that in no 
case shall a local permit officer handle a 
violation committed by the local govern- 
ment he represents. Penalties shall be as- 
sessed in accordance with Subparagraphs 
(0(5)(A),(B) and (C) of this Rule. 

(E) For the following types of violations 
civil penahies assessed pursuant to the 
criteria listed in Subparagraphs (f)(5)(A), 
(B), (C) and (D) of thi's Rule shall be 
doubled, but shall in no case exceed two 
hundred fifty doUars ($250.00) for each 
separate violation: 

(i) Violations that are willful and inten- 
tional or reflect a careless and reckless 
disregard for their impact. A violation 
shall be considered to be willful and in- 
tentional when the violator has received 



clear and direct instructions from the 
LPO or a DCM representative prior to 
violation that the activity would be in 
violation of CAMA standards, state 
guidelines or the local land use plan or 
requires a permit. In such cases, each 
day the action or inaction continues af- 
ter notice of violation shall be consid- 
ered a separate violation and may be 
assessed a separate penalty, 
(ii) Where the violator refuses to restore 
a damaged area or fails to restore it as 
requested by the LPO or authorized 
DCM staff. If appropriate, a court or- 
der shall be sought to require the proper 
restoration. 
(F) Assessments against agents or contrac- 
tors. An agent or contractor judged to 
be solely responsible for a violation shall 
bear the full cost of the assessment. If an 
agent or contractor is only partly respon- 
sible for a violation, he may be required 
to pay a portion of the assessment. If the 
element of willfulness referenced in Sub- 
paragraph (f)(5)(E) of this Rule is present 
solely on the part of the agent or contrac- 
tor the doubled portion of the civil pen- 
alty assessed pursuant to that 
Subparagraph shall be assessed against the 
contractor, provided that the party pri- 
marily responsible for the violation shall 
be assessed the base penalty in accordance 
with the criteria set out in this Rule. 
SCHEDULE A 
Size of Violation (sq.ft.) 



Resource 
Affected 

1. Primary 
nursery 
area 

2. Submergent 
native 
vegetation 

3. S. alter- 
niflora 
regularly 
flooded 

4. S. alter- 
niflora 
(irregu- 
larly 
flooded) 
Juncus 



11,001- 
15,000 



$ 2,500 



$ 2.500 



1,500 



1,250 



16 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



roemen- 
anus 






15,001- 


20,000 


% 


20,000 


25,000 


> 25,000 


2,500 


2,500 


2,500 


2,500 


2,500 


2,500 


2,000 


2,500 


2,500 


1,750 


2,250 


2,500 



(g) Payment and Remission/ Mitigation. 

(1) Within ^ 20 days after receipt of notifi- 
cation of a propooal t» aBooss, civil penalty 
assessment, the poroon against whom tb© 
aooQoomont ka« boon propoood respondent 
must tender payment to the department, 
©F submit a written requ e st that th» h e ar 
iftg b» he}4 sp e cifying the factual and/or 
legal iosuos m disputo, petition for a con- 
tested case hearing pursuant to G.S. 
150B-23, or submit in writing a request 
for reduction of the penalty stating the 
reason(s) why such a request is justified. 

(2) The director may modify the propoood 
penalty to a lower amount upon fmding 
additional or different facts which should 
be or should have been considered in de- 
termining the amount of the propoood as- 
sossmont. penalty. 

(3) The director will accept and acknowledge 
all tenders of payment on behalf of the 
commission. 

(4) Requests for reduction of a penalty are 
solely for the purpose of allowing the as- 
sessed person to contest the reasonable- 
ness of the penalty. A reduction 
procedure is not the proper context in 
which to contest facts or raise questions 
of law. A request for reduction must in- 
clude: 

(A) a written statement justifying the re- 
duction, 

(B) an acknowledgment of a civil liability 
as set out hf m the fmdings of fact and 
decision, assessment, and 

(C) a waiver of the right to an administra- 
tive contested case hearing. 

(5) If the director determines that the re- 
duction request raises issues of fact or 
questions of law, he shall tr e at th« Fe- 
duotion roquoGt as a roquoot fef adminio 
trativo oontootod ease hoaring. advise the 
assessed person to submit a petition for a 
contested case hearing pursuant to G.S. 
1508-23. There is no right to appeal a 
reduction decision to superior court. The 
assoQood p e rson respondent should request 
an administrative contested case hearing 



if he wishes to be able to seek review in 
superior court. 

(6) fte aosoBsed poroon ondtho departmont 
vrtH hav e tbe opportunity te prooont efal 
arguments te the commission m support 
ef ef opposition te th« reduction. If the 
director denies a reduction request, the 
respondent may request review of that 
decision by the commission. The argu- 
ments to the commission shall be limited 
to the reasons stated in the written request 
for reduction. U th» asoooood poroon raiooo 
Bew issuos iof t^ &«t tH»e m arguments 
boforo th« commission, the oommiooion, 
m its dioorotion, shall disregard such orgu 
ments et shall ordor an administrativo 
contootod ease hearing te h» h«14 te fully 
dovolop the aew ioouoo. 
(h) Hearings and Final Assessment. 

(+) fh% commission may dologato th« power 
t» conduct a hoaring e» its behalf t» any 
member ef the commiooion, ef t» aay 
qualifiod omployoo »f the department . 
Afty poroon t© whom such a dologation 
»f powd e r is mado shall proporo fef the 
commission a record ef the hoaring afi4 
the ovidonoo aft4 his recommondations fo* 
a docision concerning the asoooomont. 

(5^ A«y hearing concerning aft assoosmont 
shall be conducted ift accordanoo with the 
procoduroo set forth i» GtSt 113A 136(d), 
afi4 with the procedures set forth i» See- 
tie» .0300 »f this Subohaptor aft4 ift lArti 

inconsist e nt with G.S. 113A 136(d) ef 

advortisomonts shall be required. 

^^^^L ^^ ^1^^^ j^^^^^^^^j^i ^^^^^^^^^^4 ^^^^j^yyv ^j^^i I 

^^^T ^T ^^^V ^^^^^^^^T tfCt^^^^^T ^^T^TTTTT T^^TT I 

is proposed do e s set within ^ days aftor 
roooipt ef notification ef the proposal *«• 

1 ^-^-1 UV^Jl lllUl CIIV IIVIU Ulg Vh^J llVI^Tj \J1. ^^T^TllUT 

i» writing a roquost fo* reduction ef the 
penalty, theft the commission ef a d«iy 
appointed hoaring officer may proceed 
with the hoaring, grant a continuance, 
dismiooal, &f other disposition as he dooms 
appropriate, if the hearing is conduct e d 
ef a decision r e ached ift the absence ef a 
party, the absent party B»y p e tition the 
commiooion ef the hoaring officer, te Fee- 

L^H II 11 T^ \.MVt\J , U\1\JIX CT L'^-'l 1 1 1 VI 1 UI lUET l-^^J 

grant e d eftly when p e titioner 6a» show 
that the r e asons fof his failur e te app e ar 
wor e oxcusablo afi4 that fairness requires 
rooponing the cas e . The docision hy- the 
hearing offioor shall be ift writing, shall he 



NORTH CAROLINA REGISTER 



17 



PROPOSED RULES 



(4) 



Don^od »» th« p e titioner, aft4 ohoU b» 
made a part ©f Ae rocord. 
Final decisions in contested case hearings 
concerning assessments shall be made by 
the commission. A majority oi tb» com 

r^^^a^^^j^T ^r^^TTT^^Cr^ ^n^^^T L^J L? I V^.^. Ill UI (Jl UOT 

to mal<e a feai decision unlooo aii parties 
agroo te- waive tfei* roquiromont. Only 
those oommission members wbe afe pte- 

hearing is reported te tbe commission by 
aft appoint e d hearing offic e r, as th© ease 
may ber shall be qualified to ¥et« con 
coming a» assessment. A fiftai decision 
concerning aft assessment shall be made 
by concurrence »f a majority b^ thooo 
commission members who afe qualified 

♦ j~» T_t£^±^i ■-> -ri ---1 n -t-i r-v ^ra ^^^^^^^i4 ^i ^l^^ JiQ^^i 
f.\J f L7 IVJ LU IVX tTTTTT 1X1 U TTT^T^^TTT Lit I IIV TTTTT^ 

»f tbe fmal decision. The fmal decision 
shall be based on evidence in the official 
record of the contested case hearing, the 
administrative law judge's recommended 
decision, anv exceptions filed by the par- 
ties and oral arguments. Oral arguments 
shall be limited to the facts in the official 
record. 



(i) Referral. If any civil penalty as fmally as- 
sessed is not paid, the director on behalf of the 
commission shall request the Attorney General 
to commence an action to recover the amount 
of the assessment. 

(j) Reports to the Commission. Action taken 
by the director wiU be reported to the commis- 
sion at the next meeting. Such reports wiU in- 
clude information on the following: 

(1) person(s) issued letter(s) of proposed as- 
sessment; 

(2) person(s) who have paid a penalty as a 
result of a proposed assessment, requested 
remission, or requested an administrative 
hearing; 

(3) person(s) who have failed to pay; and 

(4) cases referred to the Attorney General for 
collection. 

(k) Judicial Review. .Any Person who has been 
notified of a fmal assessment may apply to the 
superior court of the county where such person 
resides for review of the hearing and assessment 
and the scope of the court's review of the com- 
mission's action (which shall include a review of 
the amount of the assessment), shall be as pro- 
vided in G.S. Chapter \SS^Ar 150B. If the per- 
son assessed fails to pay the amount of the fmal 
assessment to the department within 30 days after 
receipt of notice, or such longer period, not to 
exceed 180 days, as the commission may specify, 
the commission may institute a civil action in the 
superior court of the county in which the person 



assessed resides or has his or its principal place 
of business, to recover the amount of the assess- 
ment. In any such civil action, the scope of the 
court's review of the commission's action (which 
shall include a review of the amount of the as- 
sessment), shall be as provided in G.S. Chapter 
440Ar 150B. 

(1) Settlements. The Coastal Resources Com- 
mission hereby delegates to the director the au- 
thority to enter into a settlement of a civil penalty 
appeal at any time prior to fmal decision in an 
administrative contested case hearing. Such set- 
tlements shall not require the approval of the 
commission and shall not be considered a final 
commission decision for purposes of G.S. 
1 13A-123. Any settlement agreement proposed 
subsequent to a fmal commission decision in the 
contested case shall be submitted to the com- 
mission for approval. 

Statutory Authority G.S. 
H3A-124(c)(5); 1 13A- 126(d). 



II3A-I24(c); - 



TITLE 20 - DEPARTMENT OF STATE 
TREASURER 

lyotice is hereby given in accordance with G.S. 
J SOB- J 2 that the State Treasurer and The Local 
Government Commission intends to adopt regu- 
lations cited as 20 NCAC 7 .0/07, .0505; and 
amend regulations cited as 20 NCAC 7 .0102 - 
.0/03, .0/05 - .0/06, .0202, .0304, .050/ -.0502, 
.0504. 

1 he proposed effective date of this action is Au- 
gust J, /988. 

1 he public hearing will be conducted at /0:00 
a.m. on May //, /988 at Conference Room, Room 
/OO, 325 North Salisbury St., Raleigh, NC. 

y^omment Procedures: A written copy of the 
comments will be required of all persons wishing 
to speak at the public hearing. The hearing record 
will remain open for written comments from April 
4, /988 to May 4, 1988. Written comments 
should be sent to the APA Coordinator, 325 North 
Salisbury St., Raleigh, NC. 

CHAPTER 7 - COLLATERALIZATION OF 
DEPOSITS 

SECTION .0100 - GENER.AL 

.0102 DEFINITION OF TERMS 

The words and phrases defmed in this Rule will 
have the meanings indicated when used in this 



18 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



Chapter, unless the context clearly requires an- 
other meaning: 
(4) "Deposit Insurance" means the insurance 
provided by the Federal Deposit Insurance 
Corporation, and the Federal Savings and 
Loan Insurance Corporation. a«4 tbe 
North Carolina Savings Guaranty Corpo 
ration. 

Statutory Authority G.S. ll5C-444(b); 147-79; 
159-31 (b). 

.0103 NOTIFICATION BY DEPOSITOR 

(b) As of Docombor 34- June 30 of each year, 
or when requested by the State Treasurer, the 
custodian shall provide the depository Form 
INV-91 "Public Deposit Status Report", listing 
the current account names and numbers of all 
pubhc deposit accounts, and shall provide a du- 
plicate copy to the State Treasurer. Form 
INV-91 shall be certified by the custodian that 
the statements are correct. 

Statutory Authority G.S. ll5C-444(b); 147-79; 
I59-3l(b). 

.0105 METHOD OF EXERCISING THE 
OPTION 

(b) If the depository selects Option 2, it shall: 
file Form INV 92 "Elootion ef Option 3^ with 
the ouotodian aft4 the Stato Troaouror fof each 
cuotodian, notifying thorn that- it- has opted te- 
pool the collateral »f aU public d e poeits through 
the State Troaouror. 

(1) Submit to the State Treasurer a letter of 
intent, indicating the date it intends to 
elect Option 2^ which shall not be prior 
to the date the requirements of Items 2^ 
3j and 4 of this Paragraph are met. 

(2) Submit to the State Treasurer all executed 
escrow agreements required to comply 
with Rule .03Q3(b). 

(3) Submit to the State Treasurer Form 
INV-99, "Selected Financial Data," re- 
ferred to in Rule .0501(c). 

(4) Submit to the State Treasurer Form 
INV-97, "Annual Report on Public De- 
posits" referred to in Rule .0502(c); how- 
ever, the report shall be for the period 
immediately preceding the date of the 
election of Option Z 

(5) Submit to each custodian Form INV-92, 
"Flection of Option 2," notifying them 
that it has opted to pool the coUateral of 
all public deposits through the State 
Ireasurer: and provide the State Freasurer 
a duplicate copy of all "Flection of Op- 
tion 2" forms. 



Statutory Authority G. S. ll5C-444(b); 147.79; 
159-31 (b). 

.0106 FORMS 

The following forms shall be promulgated by 
the State Treasurer and shall be used for the 
purpose outlined in this Chapter unless specific 
permission is given to use a substitute: 

(21 INV-99 Selected Financial Data. 

Statutory Authority G.S. ll5C-444(b); 147-79; 
159-31 (b). 

.0107 DUTY OF DEPOSITORY 

By accepting public deposits, the depository as- 
sumes the duty and responsibility of maintaining 
adequate collateral as provided by law and in ac- 
cordance with the provisions of this Chapter, for 
all uninsured deposits in accounts for which the 
custodian has notified the depository pursuant to 
Rule .0103 of this Chapter. 

Statutory Authority G.S. ll5C-444(b); 147-79; 
159-31 (b). 

SECTION .0200 - SECURITIES TO BE 
DEPOSITED 

.0202 AMOUNT OF COLLATERAL REQUIRED 
TO BE PLEDGED 

(a) Under Option 1, each depository, which is 
required to pledge collateral to secure the deposit 
of public moneys, shall maintain collateral with 
an escrow agent equal to or in excess of 100 per- 
cent of the total amount of all deposits to the 
credit of the custodian less the allowable credit 
for deposit insurance. 

(b) Under Option 2, the amount of required 
collateral shall be the sum of the amounts re- 
quired to be collateralized for all depositors in the 
fmancial institution calculated as follows: 

(1) Demand Deposits. 100 percent of the 
average daily balance for the calendar year 
to date, or 100 percent of the average daily 
balance for the immediate preceding three 
calendar month period, or 100 percent of 
the average daUy balance for the current 
month to date, or such other balance as 
shall be given prior approval by the State 
Treasurer, less the applicable deposit in- 
surance for each depositor. Calculations 

171 r IXl IT UU F tTT^T^^T mWTT II WJ IxXx^ tiU T \Jl. \ 1 l\J 

month for any period other than the 
"current month to date" method may be 
based on the period ending the last day 
of the prior month. At the option of the 
State Treasurer, the Treasurer may require 
calculations to be in accordance with the 



NORTH CAROLINA REGISTER 



19 



PROPOSED RULES 



requirements of an Option ]_ depository, 
if it 15 deemed that the avcradn.g method 
for a particular depositor^" does not accu- 
rately reflect the amount of deposits to be 
secured. 
(2) Time Deposits, j^ percent of the actual 
current balance, less the applicable deposit 
insurance for each depositor. 

(c) The ma.ximum amounts of deposit insur- 
ance which may be accepted shall be one hun- 
dred thousand dollars ($100,000) on demand 
deposits and one hundred thousand dollars 
($100,000) on time deposits. An unused amount 
of insurance may not be applied to another cus- 
todian or to another type of deposit. The de- 
posits in the name of the individual school 
treasurers shall be allowed one hundred thousand 
dollars ($100,000) total insurance on both time 
and demand deposits. 

(d) All eligible secunties pledged shall be valued 
at pafr current market. 

(e) The custodian in the case of public deposits 
separately collateralized and the State Treasurer 
may require additional the amount of collateral 
to be pledged by the depositor,' to be ten percent 
greater than the amount required under this 
Rule, il' the market value of pledged securities is 
below the amount reasonably required to insure 
pubhc deposits against the risks apparent at the 
time of the request. 

Statutory Authority G. S. II5C-444(b): 147-79; 
1 59-3 1(b). 

SECTION .0300 - ESCROW OF SECURITIES 

.0304 PLEDGING: RELEASING AND 
SLBSTITLTING COLLATERAL 

(a) All pledges and releases of collateral to or 
from an escrow account shall be carried out by 
means of Form INV-95 "Request for CoUateral 
Change". The fonn shall require the following: 

(1) Amount and description (includmg Cusip 
numbers) of securities to be released and 
pledged; 

(2) The effect of the transaction(s) on the total 
collateral pledged, including the percent- 
age of excess then pledged, if a decrease; 

Statutory Authority G. S. 115C-444{b); 147-79; 
1 59-3 1(b). 

SECTION .0500 - REPORTING 

.0501 QLARTERLY REPORTING 

(a) In the case of Option 1, each depository 
shall report to the custodian the total par value 
and market value of securities pledged on the last 
day of the calendar quarter with the escrow 



agent(s) to secure public deposits. The report 
shall be submitted no later than the last day of 
the following month. 

(b) In the case of Option 2, each depository 
shall submit Form INV-96 "Quarterly Report 
on Public Deposits" to the State Treasurer no 
later than the last day of the month following the 
end of the calendar quarter. The report shall be 
dated on the last working day of the calendar 
quarter, shall summarize the accounts to be se- 
cured, shall summarize the amounts insured and 
secured at market, shall indicate the amount and 
percentage of excess collateral pledged, and shall 
be certified by an authorized officer of the de- 
pository that the statements are correct. 

(c) In addition to the Quarterly Report re- 
quired by Rule .0501(b) in this Rule, Option 2 
institutions shall submit to the State Treasurer 
Form INV-99 "Selected Fmancial Data." which 
is a report containing selected fmancial data con- 
tained in either the current quarterly report of 
condition required by the Federal Deposit Insur- 
ance Act (12 U.S.C.) or the current quarterly re- 
port required to be filed with the Federal Home 
Loan Bank Board, as applicable. 

Statutory Authoritv G. S. 115C-444(b); 147-79; 
159-31 (b). 

.0502 .ANNUAL REPORTING 

(a) In the case of Option 1 , on or before July 
31 of each year, the depository shall submit to 
the custodian, Form INV-98. 

(b) In the case of Option 2, on or before July 
31 of each year, each depositor,' shall submit to 
the State Treasurer, Forms INV-97 and INV-98 
in addition to witfe the quarterly report (INV-96) 
dated June 30. 

(c) Form INV-97 "Annual Report on Public 
Deposits" shall be dated June 30, shall list all 
depositors, and for each depositor, show the 
amounts on deposit by type, identify the 
amounts insured by type, and shall be certified 
by an authorized officer of the depository that the 
statements are correct. 

(d) Form INV-98 "Annual Report on Collat- 
eral for Public Deposits" shall be dated June 30, 
shall list and describe all collateral pledged (in- 
cluding CUSIP number par and market value), 
with each escrow agent for the custodian or State 
Treasurer, and shall be certified by an authorized 
officer of the depositor)' that the statements are 
correct. 

(e) The depositor,' may substitute his own 
format for Fo^-m INV-97' and Form INV-98, 
provided the format is substantially the same in 
content and order of presentation. 



20 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



Statutory Authority G. S. ll5C-444(b); 147-79; 
l59-3l(b). 

.0504 SPECIAL REPORTING RULE FOR 
OPTION I DEPOSITORIES 

A depository which has State funds and which 
has not elected Option 2 shall file the reports re- 
quired in Paragraphs .0501(a), .0501(c), and 
.0502(a). 

Statutory Authority G.S. II5C-444(b); 147-79; 
l59-3l(b). 

.0505 ADDITIONAL MONTHLY REPORTING 
REQUIREMENTS 

In the case of Option 2, the State Treasurer may 
at any time and at his own discretion direct the 
depository to file a report in the same format as 
the Quarterly Report required by Rule .0501(b), 
but on a monthly basis. However, the monthly 
reporting directive shall be required under any 
one of the following circumstances: 

(1) A required report is repeatedly not filed 
timely. 

(2) A required report is filed with a material 
error. 

(3) A Quarterly Report required by Rule 
.0501(b) is filed indicating that "excess" col- 
lateral pledged is less than ten percent of the 
amount required by Rule .0202. 

(4) The depository has been notified that the 
State Treasurer has invoked Rule .0202(e), 
requiring additional collateral calculations. 

Such monthly reporting directive shall be effec- 
tive for a period of six months, after which time 
the depository may resume quarterly reporting. 
However, subsequent violations shall extend the 
period of monthly reporting as set forth in this 
Rule. 

Statutory Authority G.S. ll5C-444(b); 147-79; 
l59-3l(b). 

TITLE 24 - INDEPENDENT AGENCIES 



1\ otice is hereby given in accordance with G.S. 
I SOB- 1 2 that the S'orth Carolina Housing Finance 
Agency intends to adopt regulations cited as 24 
NCAC IK .060/ - .0605. 

I he proposed effective date of this action is Au- 
gust I. I9S8. 

1 he public hearing will be conducted at 9:00 
a.m. on May 4, 1988 at North Carolina Housing 
Finance Agency, Board Room, 3300 Drake Circle, 
Suite 200, Raleigh, North Carolina 27607. 



y^omment Procedures: Written comments con- 
cerning these rules must be submitted by May 4, 
1988 to the APA Coordinator, North Carolina 
Housing Finance Agency, Post Office Box 28066, 
Raleigh, N.C. 2761 1. Oral comments may be 
presented at the hearing. 

CHAPTER 1 - N.C. HOUSING FINANCE 
AGENCY 

SUBCHAPTER IK - MULTIFA.MILY 
UNSUBSIDIZED RENTAL PROGRAM 

SECTION .0600 - CATALYST PROGRAM FOR 
NOT-FOR-PROFIT ORGANIZATIONS 

.0601 GENERAL INFORMATION 

(a) The Rules of this Subchapter apply to the 
administration of the Catalyst Program for not- 
for-profit organizations initiated by the agency to 
encourage the production of low-income rental 
housing under the Low- Income Housing Credit 
program and other programs for low-income 
rental housing. 

(b) Ehgible not for profit organizations are 
those that meet the requirements described in 
paragraph (3) or (4) of section 501(c) of the In- 
ternal Revenue Code, are exempt from tax under 
section 501(a) of the Intemal Revenue Code, and 
have as one of the exempt purposes of the or- 
ganization the fostering of low-income housing. 

Statutory Authority G.S. I22A-5; I22A-5.I; 
I22A-5.4. 

.0602 OBJECTIVES 

The purpose of the program is to promote the 
development of low-income rental housing by 
encouraging the use of the Low Income Housing 
Credit program and other innovative programs 
by not-for-profit organizations and, to avoid the 
loss of federal low-income housing tax credits al- 
located to the state. 



Statutory Authority G.S. 

122A-5.4. 



122A-5; 122A-5.1; 



.0603 TYPES OF ASSISTANCE 

Program funds will be provided as grants or 
deferred payment loans, amortizing or nonamor- 
tizing, with extended loan terms. Loans will be 
secured by the low-income housing project. In- 
terest, if any, will accrue annually at a rate es- 
tablished by the agency, depending on the needs 
of each individual project. Program funds will 
be used for one or more of the foUowing: 

(1) Predevelopment costs; 

(2) Construction cost overruns; 



NORTH CAROLINA REGISTER 



21 



PROPOSED RULES 



(3) Initial rent-up expenses; 

(4) Rent subsidies; 

(5) Finance expenses; and 

(6) Other expenses that ensure project feasibil- 
ity. 



Statutory Authority 
1 22.4-5.4. 



G.S. I22A-5: 122A-5.I: 



.0604 REQUIREMENTS 

(a) Program eligibility will be restricted to not- 
for-profit organizations which are the principal 
sponsors of a low-income, rental housing project. 

(b) Program funds will be restricted to projects 
containing low-mcome housing units that are ei- 
ther newly constructed or acquired and substan- 
tially rehabilitated. Low-ijicome units are those 
that are both income qualified, occupied by in- 
di\iduals whose income is 50 or 60 percent of the 
area median income, and affordable, with rents 
and utihty allowance not exceeding 30 percent 
of the eUgible low-income household's gross in- 
come. 

(c) Projects must respond to local market de- 
mand and must show fmancial participation by 
a unit of local eovemment. 



Statutory Authority 
122.4-54. 



G.S. 122A-5: I22A-5.I; 



.0605 PROCEDLRES 

(a) Program funds will be advertised statewide 
unless the agency determines that because of in- 
adequate response, these targeting restrictions 
shall be waived. 

(1) Each county will be limited to one funded 
project by September 30, 1988. 

(2) Each metropolitan statistical area will be 
limited to three funded projects by Sep- 
tember 30, 1988. 

(3) Projects will be funded on a first-come, 
first-served basis untU 50 percent of initial 
set-aside is committed; subsequently, pro- 
jects win be pooled at regular inter\'als and 
ranked according to project feasibility, lo- 
cal need and the ability of the agency to 
achieve an equitable geographic distrib- 
ution. 

(b) The program will require the completion 
and submission of these documents: 

(1) An application prescribed by the agency; 

(2) A letter of intent from a unit of govern- 
ment to provide supplementary fmancing; 
and 



(3) A letter of interest from investors or in- 
termediaries concerning investment in the 
tax credits. 
These requirements will be described in greater 
detail in the application materials developed by 
the agency. 



Statutory Authority G.S. 
122 A- 5. 4. 



122A-5; I22A-5.1: 



lyotice is hereby given in accordance with G.S. 
150B-12 that the North Carolina Housing Finance 
Agency/North Carolina Hotting Partnership in- 
tends to adopt the regulation cited as 24 NCAC 
IM .0001. 

1 he proposed effective date of this action is Au- 
gust 1, 1988. 

1 he public hearing will be conducted at 10:00 
a.m. on May 4, 1988 at North Carolina Housing 
Finance AgencylNorth Carolina Housing Part- 
nership, 3300 Drake Circle, Suite 200, Raleigh, 
North Carolina 27607. 

(comment Procedures: Written comments con- 
cerning this rule must be submitted by May 4, 
1988 to the .4 P. 4 Coordinator, North Carolina 
Housing Partnership, Post Office Box 26147, Ra- 
leigh, N.C. 2761 1. Oral comments may be pre- 
sented at the hearing. 

SLBCH AFTER IM - NORTH CAROLINA 
HOUSING TRUST FUND 

.0001 ADOPTION OF CHAPTER 122E BY 
REFERENCE 

(a) The North Carolina Housing Trust and Oil 
Overcharge Act, Chapter 122E of the General 
Statutes, and future amendments to the act are 
adopted by reference under G.S. 150B- 14(c). 
TTie act establishes overall policy guidelines for 
the administration of the Housing Trust Fund. 

(b) Copies of Chapter 122E may be obtained 
at the North Carolina Housing Finance Agency 
office, 3300 Drake Circle, Suite 200, Raleigh, 
North Carolina or by writing to the agency at 
Post Office Box 28066, Raleigh, North Carolina 
27611. 



Statutory .4uthoritv G.S. 
122E-8. 



I22E-4; 122E-5: 



->•} 



NORTH CAROLINA REGISTER 



NC AC INDEX 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT 



1 

2 

3 

4 

5 

6 

7 

8 

9 
10 
11 
12 
13 
14A 
15 
16 
17 
18 
19A 
20 
♦21 
22 
23 
24 
25 
26 



Administration, Department of 

Agriculture, Department of 

Auditor, Department of State 

Commerce, Department of 

Corrections, Department of 

Council of State 

Cultural Resources, Department of 

Elections, State Board of 

Governor, Office of the 

Human Resources, Department of 

Insurance, Department of 

Justice, Department of 

Labor, Department of 

Crime Control and Public Safety, Department of 

Natural Resources and Community Development, Department of 

Education, Department of 

Revenue, Department of 

Secretary of State, Department of 

Transportation, Department of 

Treasurer, Department of State 

Occupational Licensing Boards 

Administrative Procedures 

Community Colleges, Department of 

Housing Einance Agency 

State Personnel, Office of 

Administrative Hearings, Office of 



NOTE: Title 21 contains the chapters of the various occupational licensing boards. 
CHAPTER LICENSING BOARDS 

2 Architecture, Board of 

4 Auctioneers, Commission for 

6 Barber Examiners, Board of 

8 Certified Public Accountant Examiners, Board of 

10 Chiropractic Examiners, Board of 

12 Contractors, Licensing Board for 

14 Cosmetic Art Examiners, Board of 

16 Dental Examiners, Board of 

18 Electrical Contractors, Board of Examiners of 

20 Foresters, Board of Registration for 

21 Geologists, Board of 

22 Hearing /\id Dealers and Fitters Board 
26 Landscape Architects, Licensing Board of 

28 Landscape Contractors, Registration Board of 

31 Martial & Family Therapy Certification Board 

32 Medical Examiners, Board of 

33 Midwifery Joint Committee 

34 Mortuary Science, Board of 

36 Nursing, Board of 

37 Nursing Home Administrators, Board of 

38 Occupational Therapists, Board of 
40 Opticians, Board of 

42 Optometry, Board of Examiners in 



NORTH CAROLINA REGISTER 



23 



NC AC INDEX 



44 Osteopathic Examination and Registration, Board of 

46 Pharmacy, Board of 

48 Physical Therapy, Examining Committee of 

50 Plumbing and Heating Contractors, Board of 

52 Podiatry Examiners, Board of 

53 Practicing Counselors, Board of 

54 Practicing Psychologists, Board of 

56 Professional Engineen and Land Surveyors, Board of 

58 Real Estate Commission 

60 Refrigeration Examiners, Board of 

62 Sanitarian Examiners, Board of 

63 Social Work, Certification Board for 

64 Speech and Language Pathologists and 

Audiologists, Board of Examiners of 

66 Veterinary^ Medical Board 



24 NORTH CAROLINA REGISTER 



CUMULA TIVE INDEX 



CUMULA TIVE INDEX 

(April 1988 - March 1989) 



1988 - 1989 
Pages Issue 

1 - 25 April 



AO - Administrative Order 

AG - Attorney General's Opinions 

C - Correction 

E - Errata 

EO - Executive Order 

FDL - Final Decision Letters 

FR - Final Rule 

GS - General Statute 

JO - Judicial Orders or Decision 

LRA - List of Rules Affected 

M - Miscellaneous 

NP - Notice of Petitions 

PR - Proposed Rule 

SO - Statements of Organization 

TR - Temporary Rule 

EXECUTIVE ORDERS 

Executive Orders 68-71, 1 EO 

FINAL DECISION LETTERS 

Voting Rights Act, 5 FDL 

HUMAN RESOURCES 

Health Services, 7 PR 
Medical Assistance, 7 PR 

INDEPENDENT AGENCIES 

Housing Finance, 21 PR 

NATURAL RESOURCES AND COMMUNITY DEVELOPMENT 

Coastal Management, 1 1 PR 

STATE TREASURER 

Local Government Commission, 18 PR 



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